Senate GOP decries non-existent ‘court packing’

Last week, Sen. Chuck Grassley (R-Iowa) got a little confused. During a Senate Judiciary Committee hearing, the Iowa Republican read brief remarks in which he condemned the Obama administration for pushing a “court-packing” strategy in which the president would nominate judges to fill existing vacancies. It was left to Sen. Sheldon Whitehouse (D-R.I.) to gently explain that Grassley had no idea what he was talking about.

I assumed at the time that this was an amusing-but-isolated misstep involving a Republican senator who routinely gets baffled by details. But I assumed wrong – this is apparently the new GOP talking point.

…Grassley isn’t alone in making these charges. During floor remarks last week, Senate Minority Leader Mitch McConnell (R-Ky.) accused Democrats of plotting with the White House “to pack the D.C. Circuit with appointees,” and Sen. Mike Lee (R-Utah) worried aloud that Democrats may “decide to play politics and seek – without any legitimate justification – to pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda.”

Even The Wall Street Journal piled on last week, arguing in an editorial that the D.C. Circuit “doesn’t need new judges to handle the workload” and filling those vacant seats would be akin to “packing the court for political ends.”

Not to put too fine a point on this, but the argument is simply crazy. In the American system of government, it’s madness to suggest the president is doing something controversial when he nominates qualified jurists to fill vacancies on the federal bench.

“Court packing” has a specific meaning: it was an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president’s favor. The idea was floated in the 1930s, before being abandoned.

Is Obama planning a similar ploy? Not even a little. What we’re talking about here is an elected president sending qualified judicial nominees to the Senate for consideration. What Republicans are condemning is basic American governance – they hope to characterize Civics 101 as something abusive and offensive.

I hate to break this to Senate Republicans, but President Obama was elected – twice. Presidents submitting judicial nominations to the Senate to fill vacancies is pretty much the definition of normal presidential behavior. If the GOP finds this annoying, they’ll have to take it up with the Constitution.

Or, I suppose they can try court-packing in reverse, which appears to be growing in popularity.

We first talked in April about Chuck Grassley’s idea of shrinking the D.C. Circuit, removing seats from the bench, so that there would be no vacancies for Obama to fill. Grassley’s bill wasn’t just a partisan stunt – yesterday, Sen. Susan Collins (R-Maine), an alleged moderate, endorsed the proposal.

It’s reached the point at which the White House feels the need to respond to the idea.

[O]n the merits, Senator Grassley’s “court unpacking proposal” fails to make any sense. In fact, in 2005, the Senate – including Senator Grassley – voted to confirm Judge Janice Rogers Brown to the D.C. Circuit as the tenth active judge and Judge Thomas Griffith as the eleventh active judge. In 2006, the Senate – again, including Senator Grassley – voted to confirm Judge Brett Kavanaugh as the tenth active judge. Voting for judicial nominees for court seats under one president while proposing to eliminate those same seats under the president of a different political party smacks of partisan politics.

The proposal raises even more questions because in 2007, Congress passed a law to move the D.C. Circuit’s 12th seat, agreeing that the Court needed 11 seats. What has changed since then, other than the President? There are currently eight active judges on the D.C. Circuit. Republicans had no problem filling the ninth, tenth, and eleventh seats on this Court during Republican presidential administrations, but under this President, they want to remove them. In fact, the past five presidents each have had at least three judges confirmed to the D.C. Circuit – and 15 of the past 19 judges confirmed to this Court have been appointed by Republican presidents. But so far, only one of President Obama’s nominees has been confirmed.

Make no mistake about it: this is court packing in reverse and a cynical attempt to manipulate the third branch of government.

During Reagan’s two terms, he named nine judges to the D.C. Circuit. Was this “court packing”? No, it was a president sending judicial nominees to the Senate, which then confirmed those nominees. It’s the way the system is supposed to work, whether you like the president at the time or not.

Senate Republicans would have us believe that judicial nominations – not the individual nominees, but the existence of the nominations themselves – are now so controversial that they must resist. Election results don’t matter; the constitutional process doesn’t matter; the merit of the nominees doesn’t matter.

This is nothing short of twisted, even by 2013 standards, and it should send a loud signal to the Senate majority that the “nuclear option” will likely be unavoidable.